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Vern Edwards

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Everything posted by Vern Edwards

  1. Bureaucratic claptrap. You asked about a laptop, not a spacecraft.
  2. @Guest108830 You may have posted just to spur conversation. If so, it was a good thing. But if you are serious about this matter I must say that you have tried to make a mountain out of a molehill. I am a small business contractor, and I tell you that if one of my employees had borrowed a government laptop and lost it, I wouldn't have waited for a letter from the CO. I'd have called him or her and asked how much to send. It's called customer relations. Any contractor, small or otherwise, with a 5 million CPFF contract, would be an absolute idiot, a jackass in fact, to argue with a CO about paying for a laptop that one of its employees had borrowed and lost.
  3. Next time, show some imagination! (Quite a pair, laughing at the idea of prison.)
  4. @joel hoffman $600,000 would have taken care of your family for 20 years?
  5. And then: That's almost metaphysical reasoning. The exact words of FAR 45.000(b)(5) are: Well, let's get metaphysical: A laptop is not incidental to place. Its very purpose is to be carried about and used from place to place. The whole idea of a laptop is to not be incidental to place, other than one's lap, wherever it happens to be. That's why the contractor's employee asked for permission to take it home. Thus, a laptop, while a computer, it is not a "computer" in the context of FAR 45.000(b)(5). As for the laptop's status as listed government-furnished property, I'd cite the property pass. Case closed. Send the contractor a letter: Dear Contractor, One of your people asked permission to take a laptop home, Serial No... . We granted permission in order to be cooperative and facilitate your company's performance under the contract. Your employee _________________ has informed us that the laptop is lost. Our property department says its residual value (or replacement value) is $500. Please send me a check made out to the United States Treasury for $500. /s/ Contracting Officer If the contract is cost-reimbursement, time-and-materials, or fixed-price incentive, add a sentence saying that the cost of reimbursing the government will be unallowable for payment purposes. I would consider it to be beneath a contracting officer's dignity to seek legal review of such a letter. I doubt that the contractor would blink an eye before cutting a check.
  6. I would send the contractor a letter about the loss of the laptop by one of its employees and ask for a check. I wouldn't spend even one minute worrying about whether it was government-furnished property or what clause to invoke. I doubt that the contractor would, either. How much could a government laptop be worth? The contractor would have to be stupid to refuse to pay. And I wouldn't consult bleeping legal, either.
  7. There is an exception to every rule, including the rule against homicide.
  8. That's not entirely correct. See the Gratuities clause, FAR 52.203-3: The clause does not prohibit offering or giving gratuities (gifts) unless the contractor is seeking something in return. But if such an intent is just suspected or inferred, the offering could result in a costly hearing, contract termination, and demand for damages, depending on the circumstances.
  9. Don't worry, Joel. The policy people will never agree to going back to separate regulations. We're stuck with the FAR and the DFARS, which will just continue to grow.
  10. DOD operates in a special acquisition environment because of the amount of money it spends. That's why Congress is obsessed with DOD acquisition and enacts so many Title VIII laws every year. That's why the goal of a single governmentwide procurement regulation has not been achieved. The FAR is 1,996 pages long in its pdf edition. The DFARS is 1,336 pages long, and that doesn't include all the class deviations and policies like the 60-page DOD source selection procedures. Absurd. The regulators need to let DOD have its own regulation and apply the FAR to just the civilian agencies.
  11. Who knows? I doubt that there is any readily accessible record of any deliberations that may have occurred in Congress, OFPP, the FAR Councils, or elsewhere. A lot of FAR clauses are excluded from contracts for commercial items, but not enough. Why "Yay"? They only did what the law required. They didn't act out of special DOD moral or ethical righteousness.
  12. See DFARS 212.301(f)(1)(A), which requires inclusion of the gratuities clause in DOD solicitations and contracts for commercial items "to comply with 10 USC 2207," a law that applies only to the Department of Defense and that has to do with limitations on expenditure of appropriations. That is consistent with FAR 12.301(f), which states: A check of the FAR system shows that no other agency has applied the gratuities clause to contracts for commercial items.
  13. The prescription in FAR 3.202 is irrelevant pursuant to FAR 12.301(d). If you're buying commercial items you shouldn't be reading FAR 3.202, because of FAR 12.301(d). The history of FAR 3.202 is also irrelevant pursuant to FAR 12.301(d). There is nothing new about this. The statute that introduced commercial items policy was enacted in 1994. FAR Part 12 dates from slightly later. It's now 2021. Time to get with the program.
  14. FAR 12.301 (a), (b), and (c) prescribe the provisions and clauses that apply to contracts for commercial items. FAR 12.301(d) says: "Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial items, contracting officers shall be required to use only those provisions and clauses prescribed in this part." Emphasis added. What about that is hard to understand? We've now been buying commercial items pursuant to FAR Part 12 since the mid-1990s, more than 20 years. There is no issue about the gratuities clause. It does not apply. It does not apply because it is not prescribed in FAR Part 12. There is no "disconnect" in this case, only cognitive dissonance. I might understand the opening post if this were the For Beginners Only forum, but it's not.
  15. The cost/price analyst should simply report "my findings and recommendations." Should analysts state that they "find" that the price is fair and reasonable? Let them, if that is their opinion. So what? See FAR 15.405(a): If you agree with the analyst, you can cite their finding. If you don't agree with the analyst and seek a lower price, who is going to blame you?
  16. @Neurotic Warning: I have been thinking about writing what follows for a long time, but it may be more than you care to know. Keep that in mind if you decide to read it, and don't think me or accuse me of being pedantic if you read it and don't like it. (Not that you would, but some probably will.) Do not complain, all ye who proceed from here. "Fair and reasonable price" is an old phrase. I searched the Congressional Serial Set and found that what appears to have been its first official use was in an 1834 Senate debate about the purchase of printing services for Congress. It is an example of what linguists call "synonymy in idiomatic expression," which includes phrases like "plain and simple." An idiom is common speech, defined in Chambers Dictionary, 13th ed., as "A group of words established by usage as having a meaning not deducible from those of the individual words (e.g., rain cats and dogs , see the light )." Bryan Garner calls such idiomatic expressions "doublets." See Garner's Dictionary of Legal Usage, 3d. ed., "Doublets, Triplets, and Synonym-Strings." Garner includes a long list of examples, such as: aid and abet, all and sundry, any and all, each and every, fit and proper, free and clear, indemnify and hold harmless, null and void, part and parcel, separate and distinct, terms and conditions, will and testament. Such phrases are examples of "synonymy in idiomatic expression." They include two words that mean the same thing---synonyms. In our field we speak of "fair and reasonable prices" and "reasonable costs." "Fair and reasonable price" is an example of a synonymous idiomatic expression. "Fair" and "reasonable" do not denote distinct attributes. "Fair and reasonable price" it is simply a synonymously idiomatic way of saying "fair price" or "reasonable price," that is, an amount that we should be willing to pay without fear of being called fools. The doublet is used for emphasis. Acquisition law, regulation, and policy have adopted the idiom, but have not defined or set specific and distinct standards for "fair price" and for "reasonable price." Another such expression is "full and open competition." There are no distinct standards and definitions for "full competition" and for "open competition." On the other hand, "reasonable" as in the phrases "reasonable cost" and "cost reasonableness", refers to a specific standard prescribed by FAR 31.201-3. In short, "fair and reasonable price" does not mean anything specific. It is the undefined label for a very fuzzy goal. But "reasonable cost" is specific, more or less, with wiggle room. Short answer to your question: No. [Cost] reasonableness and "fair and reasonable" price are not the same. You probably knew all this, but I have had so many questions about "fair and reasonable" over the years that I just had to get this off my chest. Forgive me.
  17. @Randy322 I'm sorry that no one has responded to your request. Any response would likely be speculative, and it is hard to speculate intelligently without knowing: the position (job) description, the organization and office that is seeking to fill the position, your personal background, and how much time you have to prepare for the interview. I'm sure everyone wishes you well.
  18. Here is FAR 15.304(c)(1)(ii): In light of the definition of qualifying offeror in FAR 2.101, that means an agency need not evaluate price if it will award a contract to every responsible offeror who submits a technically acceptable proposal and is likely to offer fair and reasonable prices. Responsibility is a pass/fail criterion. Likely to offer fair and reasonable prices also seems to be a pass/fail criterion (but maybe not--perhaps some offerors could be more likely than others--absolutely, highly, moderately, etc. Can we include only they highly likely?) So what about technical acceptability? Can that be a matter of comparisons and tradeoffs or is it necessarily pass/fail? Congress and the FAR councils should get together and form a slapstick comedy troupe.
  19. Since the regulation does not define "technically acceptable," smart contracting officers will define it in the solicitation. That should put the issue to bed. The definition should state that in order to be technically acceptable a proposal must, among other things, conform to all material terms of the solicitation. That's the GAO/COFC standard for acceptability and always applies. The CO can add anything else he or she wishes in order to make the term more narrowly restrictive. The CO should document the rationale for the definition and ensure that it is not unduly restrictive. Putting the definition in the solicitation would mean that prospective offerors must protest it before the proposal due date or forever hold their peace.
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